(q) Williams v. Hedley, 8 East, 378.
(r) 6 M. & Selw. 160; Atkinson v. Denby, 31 L. J. (Ex.) 362; 7 H. & N. 934, Ex. Ch.
21 321 the plaintiff to pay it. The Court decided that the plaintiff might recover back from the defendant the amount of the note so paid. In this case it was strongly argued, that, both parties having been guilty of a fraud upon the creditors, the case was within the rule in pari delicto potior est conditio defendentis; but Lord Ellen-borough said, "this is not a case of par delictum, but of oppression on one side, and submission on the other; it can never be predicated as par delictum, when one holds the rod, and the other bows to it; there was an inequality of situation between these parties-one was creditor, the other debtor, who was driven to comply with the terms which the former chose to enforce. And is there any case, where, money having been obtained extorsively and by oppression, and in fraud of the *party's own act as it regards the other creditors, it has been held that it may not be recovered back ? On the contrary, I believe it has been uniformly decided, that an action lies."
This case has been approved and acted on in the more recent case of Horton v. Riley (s), where the defendant, being a creditor of the plaintiff, entered into a similar agreement to that in Smith v. Cuffe, with the plaintiff and the other creditors; but at the same time agreed privately with the plaintiff himself, that the excess of his debt beyond the composition should be secured to him by the joint promissory note of the plaintiff and two sureties, which note the defendant agreed to keep in his own hands. The note was given, but the defendant negotiated it, and the holder enforced payment from the plaintiff. Under these circumstances, the plaintiff, if sued by the defendant upon the note, would have had a good defence against him. Of this defence he was deprived by the defendant's having handed the note over, whereby the plaintiff was compelled to pay the money, and he had therefore a right to recover it back from the defendant. "The agreement in this case," said Lord Abinger, "makes it a stronger case even than Smith v. Cuffe, and I see no reason why we should depart from that decision."
(s) 11 M. & W. 492. See Fraser v. Pendlebury, 31 L. J. (C. P.) 1.
*The other exception is, that, when money has been paid in, or goods delivered, under an unlawful agreement, but there has been no further 'perform-' ance of it, the party paying the money or delivering the goods may repudiate the transaction and recover back his money or goods (t). It is obvious that in this case to allow the money or goods to be recovered is to allow a locus posnitentice within which the illegal contract may be repented of and not completed at all.
The true test whether a demand connected with an illegal transaction is capable of being enforced *at law is whether the plaintiff requires any aid from the illegal transaction to establish his case. If he cannot make out his claim except through an illegal transaction, e.g., if he is suing for money paid, and cannot present his case without necessarily disclos(t) Taylor v. Bowers, 1 Q. B. D. 291; 45 L. J. (Q. B., etc.) 163; 46 lb. 39. See also Wilson v. Strugnell, 7 Q. B. D. 548; 50 L. J. (M. C.) 145. There, a sum of money was paid to the defendant, who became bail for one M. on a charge of embezzlement, to indemnify him against his liability as bail. This is an illegal contract as contrary to public policy. But before the recognizance had been forfeited, it was held that M.'s trustee (M. having in the meantime become bankrupt) could recover the sum paid from the defendant. In former editions the exception was stated as follows:-" When money has been paid in pursuance of an illegal contract, but paid not to the other contracting party but to a stakeholder, then either party may recover it back again." This seems unnecessarily narrow; see Taylor v. Bowers above cited and the authorities there referred to in the judgment of Cockburn, C. J. "We have already seen (ante, p. *270) that, in the case of a stakeholder, where the contract is void as being a wager, the depositor of a stake may at any time, whether before or after the determination of the event on which the wager depends, provided the money be not paid over, demand back and recover his stake from the stakeholder.
I have now done with the contract itself. I have stated the various points relating to the contract itself, the consideration, and the effect of illegality on either. In the next Lecture I shall speak of the parties to it.
(u) Simpson v. Bloss, 7 Taunt. (2 E. C. L. R.) 246; Fivaz v. Nicholls, 2 C. B. (52 E. C. L. R.) 501; Begbie v. Phosphate Sewage Co., L. R. 10 Q B. 491, 1 Q. B. D. (C. A.) 679; 44 L. J. (Q. B.) 233; Taylor v. Bowers, supra.